Is William Rehnquist Kidding Himself or Us? His Book on the Election of 1876 Isn't About the Election of 2000?

Adam Cohen, in the NYT (March 21, 2004):

The presidential elections of 1876 and 2000 have the sort of eerie parallels that make amateur historians' pulses race. Both ended in a deadlock, with Florida holding the key. Each time, Florida officials who were partisan Republicans gave the state's electoral votes to the Republican candidate, and Democrats challenged the result. Both challenges were decided by a single vote, cast by a Republican Supreme Court justice, in favor of the Republicans.

In 2000, William Rehnquist led the court that, by a 5-to-4 vote, called the election. In 1876, Joseph Bradley broke a tie, giving the presidency to Rutherford B. Hayes over Samuel Tilden. Now, Chief Justice Rehnquist has written "Centennial Crisis: The Disputed Election of 1876," which casts Mr. Bradley in the hero's role. It is a strange book, and even readers keenly interested in history may have trouble seeing it as anything but an allegory, and apologia, for the Supreme Court's ruling in Bush v. Gore.

More than the election itself, Mr. Rehnquist's subject is the "opprobrium," a word he uses repeatedly, that he believes was wrongly visited on Mr. Bradley. The syllogism lurking just below the surface is that if Mr. Bradley has been wrongly criticized, so has the Bush v. Gore majority. But Mr. Rehnquist glides too quickly over the critical difference between how the 1876 and 2000 elections were resolved. If he is seeking absolution, he does not find it in this story.

Mr. Rehnquist starts setting out the similarities between the 1876 and 2000 elections in the first sentence. He is so eager to find parallels -- each year was "special," he writes, one the nation's centennial, the other the millennium -- that at times he sounds like a trivia buff listing the uncanny coincidences between Abraham Lincoln's life and John F. Kennedy's. ("Lincoln had a secretary named Kennedy; Kennedy had a secretary named Lincoln.")

If the two elections were in many ways alike, the methods of breaking the deadlocks were not. Rather than ending up in the Supreme Court, the 1876 election was given to a commission made up of members of Congress and Supreme Court justices. The plan was to have seven Republicans, seven Democrats, and one member with no political allegiance. But when the independent Supreme Court justice who was to hold the balance of power declined, he was replaced by Mr. Bradley, a onetime Republican candidate for Congress, who cast the deciding vote.

Much of the country was outraged. To avoid having his inauguration disrupted, Hayes, who was dubbed "Rutherfraud," was sworn in privately. Mr. Bradley was a particular target. The book has seven pages of, as his index entry puts it, "newspaper articles against." But Mr. Rehnquist argues, in reasoning he might apply to Bush v. Gore, that "the nation avoided serious disturbance or bloodshed and went on about its business."

There was a key difference, however, between Mr. Bradley's role and Mr. Rehnquist's. Mr. Bradley was appointed to the commission, a political body, by Congress, and it was understood his decision might end up being political. Mr. Rehnquist and his colleagues took the Florida case in their capacity as judges, with the implicit promise that they would make a legal determination.

In the eyes of their critics, however, that is just what they failed to do. The Bush v. Gore majority, made up of Mr. Rehnquist and his fellow conservatives, interpreted the equal protection clause in a sweeping way they had not before, and have not since. And they stated that the interpretation was "limited to the present circumstances," words that suggest a raw exercise of power, not legal analysis....

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